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ORPHAN WORKS is red hot again. After a number of failed legislative attempts and a couple of high profile court cases, its back to the drawing board, albeit a better defined drawing board. On the one hand, most everyone agrees that for true orphans, it would be great for us all to be able to digitize, copy, adapt, distribute and otherwise use them. On the other hand, how do we know it’s a true orphan? What if there is an “orphan” owner?

The public meeting has been postponed until Dec. 12, but the public comment deadline remains the same, Nov. 13th. The Department of Commerce is soliciting input on the Internet Policy Task Force’s green paper, “Copyright Policy, Creativity, and Innovation in the Digital Economy,” produced by the USPTO and the National Telecommunications and Information Administration (NTIA).

Questions from the Federal Register Oct. 3, 2013

Remixes

1. Is the creation of remixes being unacceptably impeded by this uncertainty? If not, why not? If so, how? In what way would clearer legal options result in even more valuable creativity?

2. In what ways, if any, can right holders be efficiently compensated for this form of value in cases where fair use does not apply?

3. What licensing mechanisms currently exist, or are currently under development, for remixes and for which categories of works?

4. Can more widespread implementation of intermediary licensing, such as YouTube’s Content ID system, play a constructive role? If so, how? If not, why not?

5. Should alternatives such as microlicensing to individual consumers, a compulsory license, or a specific exception be considered? Why or why not?

6. What specific changes to the law, if any, should be considered? To what extent are there approaches that do not require legislation that could constructively address these issues?

First Sale

7. What are the benefits of the first sale doctrine? And to what extent are those benefits currently being experienced in the digital marketplace?

8. To what extent does the online market today provide opportunities to engage in actions made possible by the first sale doctrine in the analog world, such as sharing favorite books with friends, or enabling the availability of less-than-full-price versions to students? 9. If the market does not currently provide such opportunities, will it do so in the near future? If not, are there alternative means to incorporate the benefits of the first sale doctrine in the digital marketplace? How would adoption of those alternatives impact the markets for copyrighted works?

10. Are there any changes in technological capabilities since the Copyright Office’s 2001 conclusions that should be considered? If so, what are they? For example, could some technologies ensure that the original copy of a work no longer exists after it has been redistributed?

11. To what extent are there particular market segments or categories of users that may warrant particularized legal treatment?

12. How will the Supreme Court’s decision in Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013), impact the ability of right holders to offer their works at different prices and different times in different online markets? How will any such changes impact the availability of and access to creative content in the United States and elsewhere?

Statutory Damages

13. To what extent is application of the current range of statutory damages necessary for effective deterrence with respect to (a) direct infringement by individual file sharers and (b) secondary liability by online services?

14. Is the potential availability of statutory damages against online

services for large scale secondary infringement hindering the development of new, legitimate services or platforms for delivering content? If so, how? What is the evidence of any such impact?

15. If statutory damages for individual file sharers and/or services found secondarily liable for infringement were to be recalibrated, how should that be accomplished? Would legislation be required?

Government Role in Improving the Online Licensing Environment

16. What are the biggest obstacles to improving access to and standardizing rights ownership information? How can the government best work with the private sector to overcome those obstacles?

17. To what extent is a lack of access to standardized, comprehensive, and reliable rights information impeding the growth of the online marketplace? What approaches could be taken to improve the situation?

18. Are there other obstacles that exist to developing a more robust, effective, or comprehensive online licensing environment? If so, what are they?

19. In addition to those efforts to develop standardized, comprehensive, and reliable rights databases and online licensing platforms described in the Green Paper, are there other efforts under way by the private sector or public entities outside the United States? If so, what are they?

20. Would a central, online licensing platform for high-volume, low-value uses (a ‘‘copyright hub’’) be a useful endeavor in the United States? If not, why not? If so, how can the government support such a project?

21. What role should the United States government play in international initiatives at WIPO or elsewhere?

Operation of the DMCA Notice and Takedown System

22. The Task Force believes that at least the following issues could be constructively addressed through a notice and takedown multistakeholder dialogue:

a. Reducing the volume of takedown notices sent to service providers;
b. Minimizing reappearance of infringing material;

c. Inaccurate takedown requests;

d. Misuse of takedown requests; and e. Difficulties in using the system for

individuals or small and medium-size enterprises (SME).

What other issues could be considered? For each issue to be considered, who are the stakeholders needed at the table?

23. How can the Task Force ensure participation by all relevant stakeholders, as well as effective and informed representation of their interests?

24. Are there lessons from existing multistakeholder processes in the realms of Internet policy, intellectual property policy, or technical standard- setting that could be applied here? If so, what are they and to what extent are they applicable?

25. In what ways could the stakeholder discussions be structured to best facilitate consensus?

The Task Force will have an initial public meeting on October 30, 2013 in D.C., and will consider public comments received before Oct 15.

DATES: Comments are due on or before November 13, 2013. Any comments received before October 15, 2013 will be considered in the discussions in the public meeting. The public meeting will be held on October 30, 2013, from 8:30 a.m. to 5:00 p.m., Eastern Daylight Time. Registration will begin at 8:00 a.m.
ADDRESSES: The Task Force intends to hold the public meeting in the Amphitheatre of the Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Avenue, N.W., Washington, DC 20004.

Theresa Hackett has alerted us that a new EIFL guide out for libraries on the EU Orphan Works Directive. The October 2012 Directive 2012/28/EU, she says, set out common rules for digitization and online display of orphan works, but unfortunately it has not realized hopes for large-scale digitization of orphan works by libraries.

The Guide explains the background and key provisions, and it makes recommendations for libraries to implement in EU countries, and advises libraries in countires that have bilateral agreements with the UE.

Is Fair Use always a high burden for the
education community to defend?If
a license is available, does that automatically negate Fair Use?If your university is relying on the
Teach Act, does that trump Fair Use?(I’m horrified, by the way, that some think it does).

I like it that this article is
readable, yet cites case law and other authoritative sources. That’s always a
trick – to make copyright reading understandable yet not oversimplified beyond
recognition.

Butler does it exceedingly well. In a sense, he creates a starter “SNOPES”
for copyright legends that he says he sometimes wishes for.

The blog of trogool has a useful delineation of the different ways “open” is used wrt Open Source, Open Standards, Open Access and more. The post points out that the open-access movement exhausts itself contending with the
same old misunderstandings over and over again.

To help fix that problem, the post offers a “brief, simplistic guide to
several flavors of open,” organized around the following questions:

What is the target of this movement? What is
being made open? As compared to what?

What legal regimes are implicated?

How does openness happen? What are the major
variants of open works of this type?

Public Knowledge reminds us that the deadline is approaching to send comments to Victoria Espinal, the U.S. Intellectual Property enforcement Coordinator. Although the request for comments is geared towards stepping up enforcement efforts, Public Knowledge points out that the comment solicitation is open to the public and that it is a chance to ask the government to support balanced copyright.and to weigh in on new enforcement initiatives like like Internet filtering, three-strikes policies, and ACTA.

He includes a chronology going back to 2004 on origins of the anti counterfeiting trade agreement. He also provides a summary of the leaked U.S. proposal from last November. See especially these provisions that tighten inducement and access (as the DMCA does).

Paragraph 2 – Third party liability.
The third party liability provisions focus on copyright, though an EU
document notes that it could (should) be extended to trademark and
perhaps other IP infringement. The goal of this section is to create
an international minimum harmonization regarding the issue of what is
called in some Member States “contributory copyright infringement”.
The U.S. proposal would include “inducement” into the standard,
something established in the U.S. Grokster case, but not found in many
other countries. This would result in a huge change in domestic law in
many countries (including Canada).

Paragraph 4 – Anti-circumvention Provisions.
ACTA would require civil and criminal penalties associated with
anti-circumvention provisions (legal protection for digital locks).
This goes beyond the requirements of the WIPO Internet treaties and
beyond current EU law which “leaves a reasonable margin of discretion
to Member States.” There is no link between the anti-circumvention
provisions and copyright exceptions. The U.S. proposal also requires
the anti-circumvention provisions to apply to TPMs that merely protect
access to a work (rather than reproduction or making available). This
would again go beyond current EU law to include protection against
circumventing technologies like region coding. From a Canadian
perspective, none of this is currently domestic law. As previously
speculated, the clear intent is to establish a Global DMCA. Paragraph 5 – Civil and Criminal Enforcement of Anti-Circumvention.
As noted above, this section requires both civil and criminal
provisions for the anti-circumvention rules, something not found in the
WIPO Internet treaties. The anti-circumvention provisions are also
designed to stop countries from establishing interoperability
requirements (ie. the ability for consumers to play purchased music on
different devices). The EU notes that this not consistent with its
law, which states “Compatibility and interoperability of the different
systems should be encouraged.” Of course, might reasonable ask why
such a provision is even in ACTA.

Here’s a great opportunity to talk with Stanford Law Library folks who are co-hosting the free workshop with Carl Malamud (Public.resource.org) on making primary legal materials more accessible. Joining the discussion will be Anurag Acharya (Google) and Jonathan Zittrain (Harvard).

10:30AM – The National Inventory of Primary Legal Materials Discussion of how to define primary legal materials.Discussion of how to structure the national survey, including what information to collect.

11:15AM – General Discussion of Legal IssuesDiscussion of issues such as copyright over primary legal materials, enabling legislation, and other issues of the law.

2:15-3:30 – Technical DiscussionDiscussion of technical challenges, including specification of a core open source system, issues of markup and citation, issues of privacy, issues of ingestion, issues of authentication.———————————-Pay parking available at Parking Structure 6 (PS6) at Campus Drive East and Arguello Mall and the Tresidder Lot near Tresidder Union and the Faculty Club, off Mayfield Ave.

The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would no longer be able to profit from reader charges. If these author publication fees would actually be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase) – suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should probably be achieved by a change in law, for the “open access” movement that effectively seeks this objective without modification of the law faces fundamental difficulties.

Secondary Content

On January 28, 2014, Stanford’s Program in Law, Science & Technology hosted the discussion, “Congratulations, you have an app – now what? App Development and Marketing from A-Z.” The discussion featured a panel of high level, experienced practitioner who provide tips, checklists and a road map for addressing legal considerations relating to mobile apps, including best practices for mobile TOU and Privacy Policies, platform considerations and much more.